“Throughout history, it has been the inaction of those who could have acted; the indifference of those who should have known better; the silence of the voice of justice when it mattered most; that has made it possible for evil to triumph.”
Haile Selassie

Thursday, June 21, 2012

Can You Get an OVI on a Bicycle in Indiana?

I posed this legal riddle on Facebook last night. But I thought I would expand upon it here.

Let's say Jerry is at an Indiana bar on a Friday night drinking his meager paycheck away. Jerry is intoxicated. He has to get home, but can't afford cab fare. Jerry's drinking buddies at the bar though offer him some alternatives to hopping in his car and risking an operating a vehicle while intoxicated charge.

Larry says: "My bicycle is chained outside. You can take that home if you want."

Robert says: "You're welcome to use my electric wheelchair to get home. I'll come by and get it in the morning."

So the options are horse, bicycle and electric wheelchair. One of those can net you an OVI charge...the other two are not covered by the OVI law. (I'm not saying you can't get something like a public intoxication charge.)

Let's examine the OVI law first. The two basic OVI statutes are found in IC 9-30-5 et seq.:

IC 9-30-5-1

Class C misdemeanor; defense

Sec. 1. (a) A person who operates a vehicle with an alcohol concentration equivalent to at least eight-hundredths (0.08) gram of alcohol but less than fifteen-hundredths (0.15) gram of alcohol per:

(1) one hundred (100) milliliters of the person's blood; or

(2) two hundred ten (210) liters of the person's breath;

commits a Class C misdemeanor.

(b) A person who operates a vehicle with an alcohol concentration equivalent to at least fifteen-hundredths (0.15) gram of alcohol per:

(1) one hundred (100) milliliters of the person's blood; or

(2) two hundred ten (210) liters of the person's breath;

commits a Class A misdemeanor.

(c) A person who operates a vehicle with a controlled substance listed in schedule I or II of IC 35-48-2 or its metabolite in the person's body commits a Class C misdemeanor.

(d) It is a defense to subsection (c) that the accused person consumed the controlled substance under a valid prescription or order of a practitioner (as defined in IC 35-48-1) who acted in the course of the practitioner's professional practice.

IC 9-30-5-2

Class A misdemeanor

Sec. 2. (a) Except as provided in subsection (b), a person who operates a vehicle while intoxicated commits a Class C
misdemeanor.

(b) An offense described in subsection (a) is a Class A
misdemeanor if the person operates a vehicle in a manner that endangers a
person.

So what is the definition of a "vehicle"? IC 9-13-2-196 provides for several definitions of that term as used in the Title 9. However the definition specifically applying to the OVI offense is:

(f) For purposes of IC 9-30-5, IC 9-30-6, IC 9-30-8, and IC 9-30-9, the term
means a device for transportation by land or air. The term does not include an
electric personal assistive mobility device.

The legislature specifically exempted "electric personal assistive mobility device" from the definition. So the electric wheelchair is definitely an option. (Ironically if the wheelchair is not motorized, it would appear to be covered by the OVI laws as a vehicle.) I suppose a prosecutor could argue that the electric wheelchair is not Jerry's so that exception shouldn't apply to him, but criminal statutes are construed strictly so I think Jerry should win that argument.

But Jerry doesn't want to deprive Robert of the use of his electric wheelchair. So now Jerry's options are the horse or the bicycle. Which to choose? Well "device" is not defined in Title 9. So let's look at a common dictionary definition of the term.

According to Merriam-Webster, "device" is defined as "a piece of equipment or a mechanism designed to serve a special purpose or perform a special function."

A horse is not a "piece of equipment or a mechanism," but a bicycle certainly is.

About Me

I have been an attorney since the Fall of 1987. I have worked in every branch of government, including a stint as a Deputy Attorney General, a clerk for a judge on the Indiana Court of Appeals, and I have worked three sessions at the Indiana State Senate.
During my time as a lawyer, I have worked not only in various government positions, but also in private practice as a trial attorney handing an assortment of mostly civil cases.
I have also been politically active and run this blog in an effort to add my voice to those calling for reform.